flower mound town council investigation report
DESCRIPTION
An outside investigation of allegations that several Flower Mound Town Council members violated the Texas Open Meetings Act, town charter and town ethics ordinance.TRANSCRIPT
PRIVILEGED AND CONFIDENTIAL
INVESTIGATION REPORT
TOWN OF FLOWER MOUND
SUBJECT
ALLEGATIONS AGAINSTELECTED OFFICIALS
ROSS T. FOSTERFOSTER & EAST
9001 AIRPORT FREEWAY, SUITE 675NORTH RICHLAND HILLS, TEXAS 76180
INVESTIGATOR
INVESTIGATION REPORT
TABLE OF CONTENTS
1.0. Introduction and Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.0. Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.0. Allegations, Factual Basis, Analysis and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1. Tom Hayden-Mayor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1.1. Disclosures to Pierson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Application of TOMA: No violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Application of the Town Charter: No violation. . . . . . . . . . . . . . . . . . . . . . 7
Application of the Ethics ordinance: No violation. . . . . . . . . . . . . . . . . . . 8
3.1.2. Holding multiple positions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Application of the Charter: No violation. . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1.3. Instructing Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Application of the Charter: No violation. . . . . . . . . . . . . . . . . . . . . . . . . . 11
Page 2
3.2. Brian Rountree-Council member Place 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.3. Bryan Webb-Council member Place 2... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.3.1. Disclosures to Pierson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Application of TOMA: No violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Application of the Town Charter: No violation. . . . . . . . . . . . . . . . . . . . 13
Application of the Ethics ordinance: No violation. . . . . . . . . . . . . . . . . . 14
3.4. Kevin Bryant-Council member Place 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.4.1. Social Media Sites. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Application of TOMA: No violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.5. Steve Dixon-Council member Place 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.6. Itamar Gelbman-Council member Place 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.6.1. Disclosures to Vaught. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Application of Ethics ordinance: Possible violation, prosecutionrecommended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.6.2. Social Media Sites. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Page 3
Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Application of TOMA: No violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.6.3. Misuse of position with respect to Flick property. . . . . . . . . . . . . . . . . . . . 23
Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Application of Ethics ordinance: No violation. . . . . . . . . . . . . . . . . . . . . 26
4.0. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Page 4
INVESTIGATION REPORT
1.0. Introduction and Jurisdiction.
Section 3.12 of the Charter of the Town of Flower Mound empowers the Town Council to
conduct investigations of any department, agency, officer or employee of the Town. Pursuant to that
authority, on July 20, 2015, the Council directed the Town Manager to move forward with arranging
for a third-party investigation of the Town’s elected officials. The scope of the investigation was
limited to possible violations of any of the following: (1) the Town Charter; (2) the Texas Open
Meetings Act (“TOMA”); or (3) Article VIII of the Town’s Code of Ordinances (the “Ethics
ordinance”). The investigation was also limited to events occurring during the period beginning May
20, 2015, and ending July 29, 2015. The Town Manager contacted the Foster & East law firm and
an engagement letter was signed concerning the investigation. On September 8, 2015, the Council
approved the continuance of the third-party investigation initiated by the Town Manager, and it
ratified the actions taken by the Town Manager concerning the investigation.
2.0. Procedure.
The investigation was conducted in a stepped manner. The Council members were initially
interviewed in an attempt to narrow the scope of the investigation, identify relevant documents,
identify potential witnesses, and ascertain the allegations against the elected officials. Preliminary
legal research was then performed in order to establish the elements of the alleged violations.
Relevant documents were then requested, and the documents that were produced were reviewed.
Certain non-council witnesses were interviewed. The existing evidence at that time was considered.
Page 5
It was determined that additional information was needed and certain prior statements should be
clarified and given under oath. Certain Council members and witnesses were then examined under
oath. Additional documentary evidence relevant to the statements under oath was obtained.1
Additional legal research was performed. Finally this Investigation Report to the Town was drafted.
3.0. Allegations, Factual Basis, Analysis and Authorities.2
3.1. Tom Hayden-Mayor.
3.1.1. Disclosures to Pierson
Allegation: That the Mayor disclosed to Nels Pierson the Council had discussed in
executive session removing Pierson from the Town’s Planning and Zoning Commission (the
“P&Z”), which, it was alleged, constituted violations of TOMA, of the Town Charter (allegedly
through an incorporated violation of Robert’s Rules of Order), and of the Ethics ordinance.
Factual Basis: Mayor Hayden has testified he became aware of the possible removal
of Nels Pierson from the P&Z as a result of Council discussions in executive session. Prior to the
information becoming public, Mayor Hayden discussed with Nels Pierson his possible removal from
the P&Z and discussed the presentation Mr. Pierson would make at an upcoming Council meeting
concerning his removal. Mayor Hayden’s stated purpose for these communications with Mr. Pierson
During the investigation the Investigator was contacted by third parties concerning1
alleged violations within the scope of the investigation. No personal knowledge of any allegedviolation was claimed by any of the third parties. Any relevant documentary evidence submittedby the third parties was considered in the investigation.
Several allegations were the same or similar against multiple Council members. For2
clarity, the complete analysis of the allegations in the report is repeated for each affected Councilmember without reference to the analysis pertaining to other Council members.
Page 6
is he believed it was appropriate for Mr. Pierson to be made aware that he was being considered for
removal, so he could be prepared to defend himself.
Application of TOMA: No violation.
TOMA prohibits only disclosure of the actual “certified agenda” (i.e., the official written
minutes of the executive session) or of an actual recording of the executive session. It does not
generally prohibit subsequent disclosure or discussion of what occurred in executive session. Op.
Tex. Att'y Gen. No. JM-1071 (1989) (stating the prohibition against disclosure in TOMA does not
prohibit members of a governmental body or other persons in attendance at an executive session
from making public statements about the subject matter of that session). The disclosure to Mr.
Pierson by Mayor Hayden, therefore, was not a violation of TOMA.
Application of the Town Charter: No violation.
Section 3.10 of the Town Charter allows the Council to adopt rules of procedure. The
Council by ordinance has adopted Robert’s Rules of Order, Newly Revised (“Robert’s”), to govern
procedure. Code of Ordinances § 2-53. In Section 9 of Robert’s, “Particular Types of Business
Meetings, Executive Session,” it states, “A member of a society can be punished under disciplinary
procedure if he violates the secrecy of executive session. Anyone else permitted to be present is
honor-bound not to divulge anything that occurred.”
The allegation of a Charter violation is based on a legal misconception. Section 3.10 of the
Charter is nothing more than an enabling provision or a grant of power to the Council. It empowers
the Council to adopt rules of procedure, just as Section 3.07 of the Charter empowers the Council
to adopt other ordinances and resolutions concerning numerous matters. The Council’s exercise of
Page 7
the power granted to adopt rules, ordinances and resolutions does not mean that any violation of
these adopted rules, ordinances or resolutions also constitutes a violation of the Charter itself.
Otherwise, if a Council member violated any provision of the Flower Mound Code of Ordinances,
they would also be committing a Charter violation, a ridiculous result.
Additionally, section 3.10 of the Charter authorizes the Council to adopt only rules of
procedure. In fact, the ordinance provision adopting Robert’s specifies that the rules are adopted to
the extent they are “procedural” in nature. The above-referenced provision of Robert’s, however, is
substantive in nature, not procedural, in that it declares rights, duties, and punishments. See, e.g.,
Black's Law Dictionary (10th ed. 2014), “Substantive Law,” “Procedural Law.” Thus, the above-
referenced substantive provision of Robert’s has not been adopted by the Council. In other words,
the Council’s express adoption of only procedural rules cannot operate effectively to enact law that
defines substantive rights, duties, and punishments.
The disclosure by Mayor Hayden to Mr. Pierson, therefore, was not a violation of the Charter.
Application of the Ethics ordinance: No violation.
Section 2-415 of the Ethics ordinance lists fifteen different prohibited acts. Relevant to the
inquiry, part (3) prohibits a public official from directly or indirectly disclosing or using any
information gained solely by reason of his official position for his own personal gain or benefit or
for the private interest of others. Additionally, part (14) prohibits knowingly disclosing information
deemed confidential by law. There is no definition in the ordinance of the terms “benefit,” “private
interest,” or “deemed confidential by law.”
No evidence of any financial dealings, actual or contemplated, between Mayor Hayden and
Mr. Pierson was found. Nor is there any evidence that Mr. Pierson was engaged in activity from
Page 8
which he stood to profit as a result of his volunteer, unpaid position as a P&Z member. To the extent
the prohibition of part (3) is based on preventing profit or financial gain, it is not applicable. It was
suggested that the term “benefit” in part (3) is broad enough to prohibit disclosing information that
would further Mayor Hayden’s political agenda for the Town. It was further suggested that the term
“private interest” in part (3) is broad enough to include disclosing information that would have
allowed Mr. Pierson to exercise his statutory right to have his removal from the P&Z deliberated in
public. Such broad constructions are not supported either by the policy and purpose enunciated in
the Ethics ordinance or by other ethics-related laws that use the same or similar terms.
Section 2-414 of the Ethics ordinance declares the policy and purpose of the ordinance by
identifying six different goals for the operation of a democratic government. None of those goals
were abridged by the disclosure of Mayor Hayden to Mr. Pierson. Other ethics provisions are
normally construed to prevent conflicts of interest arising from potential financial gain or divided
duties of loyalty. See Tex. Const. art. III, § 22, comment; Op. Tex. Att'y Gen. No. GA-0087 (2003);
Op. Tex. Att'y Gen. No. LO-88-44 (1988). No opportunity for financial gain or benefit to Mayor
Hayden was present. To the extent that Mayor Hayden may have been pursuing his political agenda
for the Town, he was doing what all public officeholders are elected to do. No divided loyalty
between the Town and another was present. Further, since the only possible result of Mayor
Hayden’s disclosure was to allow Mr. Pierson to exercise his statutory rights, which he otherwise
would have lost, the action cannot be interpreted as detrimental or adverse to any interest of the
Town. Mayor Hayden’s disclosure did not constitute a violation of 2-415(3).
As explained above, the information concerning the possible removal of Mr. Pierson was not
confidential under TOMA, nor is it is among the information deemed confidential by the Public
Page 9
Information Act. It has been suggested that the information was confidential under the attorney-3
client privilege. The attorney-client privilege, however, applies only to information exchanged in
seeking legal advice. Tex. R. Evid. 503. The discussion in executive session that one or more of the
Council members was contemplating making a motion to remove Mr. Pierson at the next council
meeting did not involve the seeking or rendering of legal advice. The information concerning the
possible removal of Mr. Pierson was not deemed confidential by law. Mayor Hayden’s disclosure
did not constitute a violation of 2-415(14).
3.1.2. Holding multiple positions.
Allegation: That the Mayor held another public office in violation of the Charter.
Factual Basis: Mayor Hayden is a member of the board of directors of Windmill
Farms HOA. Mayor Hayden serves on the HOA board as a result of his employment. Windmill
Farms is a residential subdivision development, located in Forney, Texas. Mayor Hayden’s employer
owns numerous lots in the subdivision.
Application of the Charter: No violation.
Section 3.02.1 of the Charter prohibits members of the council from holding other public
offices during their tenure (other than Notary Public or as a member of the military reserve).
Windmill Farms HOA is a private company. Holding a position of director, unpaid, in a private
company is not equivalent to holding a public office. It has been suggested that the situation is
affected by the fact that Centurion American may be the developer of Windmill Farms and may also
Tex. Gov’t Code §§ 552.101 to 552.156.3
Page 10
be the developer of River Walk development in Flower Mound. Whether Centurion American is the
developer of both does not alter the analysis.4
Mayor Hayden’s position as a director of Windmill Farms HOA does not violate the Charter.
3.1.3. Instructing Staff
Allegation: That the Mayor instructed city staff in violation of the Charter.
Factual Basis: The Town publishes a newsletter entitled, “Message from the Mayor.”
The Town’s communications and marketing manager’s duties include ghost writing the newsletter
and seeing to its publication. In order to facilitate the publication of the newsletter, the
communications and marketing manager has been directed by the Town Manager to deal directly
with the Mayor in determining the content of the newsletter, and the Mayor has been asked by the
Town Manager to deal directly with the communications and marketing manager. The Investigator
has been provided an email from the Mayor directed to the communication and marketing manager,
advising her that she was going to be required to write the content of a column for the newsletter
concerning a particular subject.5
Application of the Charter: No violation.
Section 3.09 of the Charter requires that Council members deal solely through the Town
Mayor Hayden’s position as a board member of Windmill Farms HOA also presents no4
conflict of interest with his position as mayor. Mayor Hayden owes a duty of loyalty both to theTown and to Windmill Farms HOA. These duties of loyalty do not conflict. There is nointeraction between the Town and the HOA. Because Centurion American may also be a memberof the HOA does not mean that Mayor Hayden owes a duty of loyalty to Centurion Americanwith regard to its dealings in the Town.
The Investigator has also been provided other emails from Mayor Hayden to the Town5
staff with the assertion that they constitute direction to the staff. Each of those emails, however,constitutes a request for information only. No further analysis is necessary.
Page 11
Manager with regard to the administrative and executive duties under the Town Manager. The
Charter provision does not prohibit the Town Manager from delegating to other employees duties
which require continued interaction with Council members in order to complete the task. The Town
Manager has delegated to the communications and marketing manager the task of dealing with the
Mayor in publishing the newsletter. The communication between the Mayor and the communications
and marketing manager is within the scope of the duties delegated by the Town Manager. Mayor
Hayden has not violated the Charter in advising the communications and marketing manager she was
going to have to write a column for the newsletter.
3.2. Brian Rountree-Council member Place 1.
During the course of the investigation Council member Rountree tendered his resignation
from the Council, and his resignation was accepted. Upon his resignation becoming effective the
Council no longer had the jurisdiction or power to investigate Council member Rountree under the
Charter. The investigation of Council member Rountree was concluded without being completed.
3.3. Bryan Webb-Council member Place 2.
3.3.1. Disclosures to Pierson
Allegation: That Council member Webb disclosed to Nels Pierson the Council had
discussed in executive session removing Pierson from the “P&Z”, which, it was alleged, constituted
violations of TOMA, of the Town Charter (allegedly through an incorporated violation of Robert’s
Rules of Order), and of the Ethics ordinance.
Factual Basis: Council member Webb has testified he became aware of the possible
removal of Nels Pierson from the P&Z as a result of discussions in executive session in a Council
meeting. Prior to the information becoming public Council member Webb discussed with Nels
Page 12
Pierson his possible removal from the P&Z and advised him that he had a right to request the
deliberation on his removal be conducted in public. Council member Webb’s stated purpose for
these communications with Mr. Pierson is he believed it was appropriate for Mr. Pierson to be aware
he was being considered for removal and he had a right to request the deliberation on his removal
be conducted in public.
Application of TOMA: No violation.
TOMA prohibits only disclosure of the actual “certified agenda” (i.e., the official written
minutes of the executive session) or of an actual recording of the executive session. It does not
generally prohibit subsequent disclosure or discussion of what occurred in executive session. Op.
Tex. Att'y Gen. No. JM-1071 (1989) (stating the prohibition against disclosure in TOMA does not
prohibit members of a governmental body or other persons in attendance at an executive session
from making public statements about the subject matter of that session). The disclosure to Mr.
Pierson by Council member Webb, therefore, was not a violation of TOMA.
Application of the Town Charter: No violation.
Section 3.10 of the Town Charter allows the Council to adopt rules of procedure. The
Council by ordinance has adopted Robert’s Rules of Order, Newly Revised (“Robert’s”), to govern
procedure. Code of Ordinances § 2-53. In Section 9 of Robert’s, “Particular Types of Business
Meetings, Executive Session,” it states, “A member of a society can be punished under disciplinary
procedure if he violates the secrecy of executive session. Anyone else permitted to be present is
honor-bound not to divulge anything that occurred.”
The allegation of a Charter violation is based on a legal misconception. Section 3.10 of the
Charter is nothing more than an enabling provision or a grant of power to the Council. It empowers
Page 13
the Council to adopt rules of procedure, just as Section 3.07 of the Charter empowers the Council
to adopt other ordinances and resolutions concerning numerous matters. The Council’s exercise of
the power granted to adopt rules, ordinances and resolutions does not mean that any violation of
these adopted rules, ordinances or resolutions also constitutes a violation of the Charter itself.
Otherwise, if a Council member violated any provision of the Flower Mound Code of Ordinances,
they would also be committing a Charter violation, a ridiculous result.
Additionally, section 3.10 of the Charter authorizes the Council to adopt only rules of
procedure. In fact, the ordinance provision adopting Robert’s specifies that the rules are adopted to
the extent they are “procedural” in nature. The above-referenced provision of Robert’s, however, is
substantive in nature, not procedural, in that it declares rights, duties, and punishments. See, e.g.,
Black's Law Dictionary (10th ed. 2014), “Substantive Law,” “Procedural Law.” Thus, the above-
referenced substantive provision of Robert’s has not been adopted by the Council. In other words,
the Council’s express adoption of only procedural rules cannot operate effectively to enact law that
defines substantive rights, duties, and punishments.
The disclosure by Council member Webb to Mr. Pierson, therefore, was not a violation of
the Charter.
Application of the Ethics ordinance: No violation.
Section 2-415 of the Ethics ordinance lists fifteen different prohibited acts. Relevant to the
inquiry, part (3) prohibits a public official from directly or indirectly disclosing or using any
information gained solely by reason of his official position for his own personal gain or benefit or
for the private interest of others. Additionally, part (14) prohibits knowingly disclosing information
Page 14
deemed confidential by law. There is no definition in the ordinance of the terms “benefit,” “private
interest,” or “deemed confidential by law.”
No evidence of any financial dealings, actual or contemplated, between Council member
Webb and Mr. Pierson was found. Nor is there any evidence that Mr. Pierson was engaged in activity
from which he stood to profit as a result of his volunteer, unpaid position as a P&Z member. To the
extent the prohibition of part (3) is based on preventing profit or financial gain, it is not applicable.
It was suggested that the term “benefit” in part (3) is broad enough to prohibit disclosing information
that would further Council member Webb’s political agenda for the Town. It was further suggested
that the term “private interest” in part (3) is broad enough to include disclosing information that
would have allowed Mr. Pierson to exercise his statutory right to have his removal from the P&Z
deliberated in public. Such broad constructions are not supported either by the policy and purpose
enunciated in the Ethics ordinance or by other ethics-related laws that use the same or similar terms.
Section 2-414 of the Ethics ordinance declares the policy and purpose of the ordinance by
identifying six different goals for the operation of a democratic government. None of those goals
were abridged by the disclosure of Council member Webb to Mr. Pierson. Other ethics provisions
are normally construed to prevent conflicts of interest arising from potential financial gain or divided
duties of loyalty. See Tex. Const. art. III, § 22, comment; Op. Tex. Att'y Gen. No. GA-0087 (2003);
Op. Tex. Att'y Gen. No. LO-88-44 (1988). No opportunity for financial gain or benefit to Council
member Webb was present. To the extent that Council member Webb may have been pursuing his
political agenda for the Town, he was doing what all public officeholders are elected to do. No
divided loyalty between the Town and another was present. Further, since the only possible result
of Council member Webb’s disclosure was to allow Mr. Pierson to exercise his statutory rights,
Page 15
which he otherwise would have lost, the action cannot be interpreted as detrimental or adverse to any
interest of the Town. Council member Webb’s disclosure did not constitute a violation of 2-414(3).
As explained above, the information concerning the possible removal of Mr. Pierson was not
confidential under TOMA, nor is it among the information deemed confidential by the Public
Information Act. It has been suggested that the information was confidential under the attorney-6
client privilege. The attorney-client privilege, however, applies only to information exchanged in
seeking legal advice. Tex. R. Evid. 503. The discussion in executive session that one or more of the
Council members was contemplating making a motion to remove Mr. Pierson at the next council
meeting did not involve the seeking or rendering of legal advice. The information concerning the
possible removal of Mr. Pierson was not deemed confidential by law. Council member Webb’s
disclosure did not constitute a violation of 2-415(14).
3.4. Kevin Bryant-Council member Place 3.
3.4.1. Social Media Sites
Allegation: That Council member Bryant used social media sites to deliberate with
Council members Brian Rountree and Itamar Gelbman on the subject of the potential investigation
of the Council, allegedly in violation of TOMA.
Factual Basis: Subsequent to assuming his position as a member of the Town Council,
Kevin Bryant posted to social media sites information concerning the subject of the potential
investigation of the Council. Council members Rountree and Gelbman also posted to social media
sites information concerning this same issue. Some of these Council members’ posts were to the
Tex. Gov’t Code §§ 552.101 to 552.156.6
Page 16
same social media site and some were to the same threads on those sites, although all three did not
post information concerning this issue to the same site and thread.
Application of TOMA: No violation.
Generally, TOMA requires Council members to deliberate about Town issues in a properly-
noticed public meeting. Section 551.143 of TOMA prohibits Council members from conspiring to
meet in numbers less than a quorum to avoid the requirements of notice and public meeting under
TOMA. Social media could be used to effect a conspiracy in violation of TOMA. To constitute a
violation, however, the public official must have the requisite culpable mental state. Op. Tex. Att'y
Gen. No. GA-0326 (2005). No evidence that Council member Bryant “knowingly” attempted to
avoid the requirements of TOMA by using social media sites was found. Council member Bryant,
therefore, did not violate TOMA.
3.5. Steve Dixon-Council member Place 4.
No allegations were made against Council member Dixon.
3.6. Itamar Gelbman-Council member Place 5.
3.6.1. Disclosures to Vaught
Allegation: That Council member Gelbman disclosed to David Vaught information
provided to Council in executive session about incentives the Town was offering to grant to a gun
range and other businesses in violation of the Ethics ordinance.
Factual Basis: The factual basis for this allegation is disputed.
Gelbman verison: In the previous school year, Council member Gelbman’s daughter
and David Vaught’s daughter were in the same school class. As a result Council member Gelbman
had seen Mr. Vaught, knew who he was, and possibly had been introduced to him. Gelbman had not,
Page 17
however, had any face-to-face conversations with Vaught. At some point, probably around the first
of this year, Council member Gelbman and Mr. Vaught became Facebook friends. Also around the
first of this year, Council member Gelbman posted on Facebook that he was interested in opening
a gun range in Flower Mound. This post prompted Mr. Vaught to contact him and request a meeting.
The meeting occurred at local restaurant. At the meeting, opening a gun range was discussed.
Council member Gelbman and Mr. Vaught also discussed numerous other things and discovered they
had many things in common. A friendship blossomed from that meeting that eventually included
Council member Gelbman, Mr. Vaught, and their respective families. Council member Gelbman and
Mr. Vaught continued discussing “partnering up” in a gun range. Generally, Council member
Gelbman desired to acquire an equity interest in the business. Mr. Vaught was not receptive to
Council member Gelbman being more than an investor. Mr. Vaught provided a pro forma business
plan for the gun range to Council member Gelbman. These discussions were continuing when
Council member Gelbman was elected to the Town Council. Council member Gelbman never
discussed with Mr. Vaught incentives proposed to the gun range or incentives proposed to other
businesses by the Town, either before or after the executive session where they were discussed. The
first time Council member Gelbman heard about Town incentives proposed to the gun range was
when the Council went into executive session and the incentives were shown to him. Council
member Gelbman does not recall receiving any written information about incentives on the gun rage
in executive session. Council member Gelbman would have no copies of executive session handouts7
because he returns those to the Town Manager or to the Town Secretary. Occasionally, Council
According to the Town Manager and other Council members, a sheet on incentives7
proposed for the gun range and other businesses was distributed at the executive session.
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member Gelbman forgets to return the executive session documents, but he either shreds or trashes
any documents he forgets to return. When incentives for the gun range were brought up in executive8
session he tried to stay as far away from the issue as he could. Council member Gelbman believes9
he became aware that the incentives for the gun range were going to be discussed just before they
went into executive session, and he asked the Town Attorney if he could even “attend” the meeting.
The Town Attorney told Council member Gelbman that as long as he did not have an ownership
interest he had no conflict. Council member Gelbman believes it is possible the discussion with the
Town Attorney did not occur until the second meeting where incentives for the gun range were
discussed. Council member Gelbman did not give Mr. Vaught the incentives handout, which was10
passed out in executive session. When the vote on the incentives for the gun range came up during
the council meeting on July 20, 2015, Council member Gelbman recused himself, even though he
was not legally required to do so, because he was still contemplating investing in the gun range.
Council member Gelbman’s friendship with Mr. Vaught, however, had ended on June 11, 2015,
According to the Town Manager, Council member Gelbman had never returned any8
executive session material until the Council meeting after Council member Gelbman’s swornstatement was taken.
According to other Council members, Council member Gelbman participated in the9
discussion concerning incentives for the gun range in executive session and expressed consensuswith the other Council members on the incentives for the gun range. According to the TownManager, Council member Gelbman and he met one or two days after the Council meeting. Inthat meeting, Council member Gelbman expressed the opinion that the Town should offer thegun range more incentives than were discussed in executive session.
According to the Town Attorney, Council member Gelbman first contacted him on10
July15, 2015, to inquire about a potential conflict of interest. Council member Gelbman indicatedhe was in ongoing negotiations with a business to become a possible investor in the near future.Council member Gelbman did not identify the business in his conversations with the TownAttorney.
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when Mr. Vaught committed an act, which Council member Gelbman considers to be illegal. Since
that time, Council member Gelbman states, Mr. Vaught has threatened Council member Gelbman
both physically and legally. Council member Gelbman believes Mr. Vaught is making these alleged
threats because of Council member Gelbman’s reaction to Mr. Vaught’s acts on June 11. Council
member Gelbman believes he has texts that reflect his relationship and dispute with Mr. Vaught, but
he has not produced all of them.
Vaught version: David Vaught is a businessperson in Flower Mound. Sometime prior
to December 2013, Mr. Vaught conceived the idea of developing a gun range in the Flower Mound
area. In December 2013, he hired a consultant to aid him in the development of the gun range and
contacted a land broker to find a site. Mr. Vaught’s development of the gun range has been ongoing
to date. In January 2015, Mr. Vaught became aware Council member Gelbman, who he did not
know, had announced as a candidate for the Flower Mound Town Council. Mr. Vaught contacted
Council member Gelbman by social media concerning his political views to which Council member
Gelbman responded. Mr. Vaught and Council member Gelbman then established a friendly
relationship through social media without an actual face to face meeting. Mr. Vaught and Council
member Gelbman first met on March 16, 2015. On March 19, 2015, Mr. Vaught, through social
media, first told Council member Gelbman he was opening a gun range to which Council member
Gelbman immediately expressed interest in becoming a partner. In this March time frame Mr.
Vaught, through his consultant, became aware he could apply for incentives for the gun range from
the Town. Mr. Vaught’s consultant filed an application for incentives with the Town on April 24,
2015. At that time Mr. Vaught had not met with Council member Gelbman about participating in
the gun range. After Council member Gelbman was elected, Mr. Vaught, on May 19, 2015, inquired
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whether he was still interested in participating in the gun range to which Council member Gelbman
responded in the affirmative. On June 2, 2015, Council member Gelbman called Mr. Vaught and
told Mr. Vaught that he, Council member Gelbman, needed to meet with him immediately about the
gun range. Council member Gelbman requested they meet at La Madeleine restaurant. Mr. Vaught
met with Council member Gelbman at La Madeleine on June 2, 2015, as requested. Mr. Vaught took
a copy of a pro forma for the gun range to the meeting. At the meeting Mr. Vaught gave Council
member Gelbman the pro forma. Council member Gelbman showed Mr. Vaught a copy of the June
1, 2015, executive session handout on incentives proposed for the gun range and other businesses
seeking incentives from the Town. Council member Gelbman told Mr. Vaught he thought the gun
range incentive package was insufficient and that Mr. Vaught could get more. Council member
Gelbman specifically discussed the incentive package offered to Mi Dia restaurant. Mr. Vaught
became uncomfortable and left the meeting. The next day Mr. Vaught texted Council member
Gelbman saying “Don’t sweat the economic incentives’ thing” and that he was going to accept the
Town’s incentive offer. After the La Madeleine meeting there were no further serious discussions
between Council member Gelbman and Mr. Vaught concerning Council member Gelbman
participating in the gun range.
As of June 2, 2015, the Town had not entered into incentive agreements with any of the
businesses listed in the June 1, 2015, executive session handout.
Application of Ethics ordinance: Possible violation, prosecution recommended.
Section 2-415 of the Ethics ordinance lists fifteen different prohibited acts. Relevant to the
inquiry, part (3) prohibits a public official from directly or indirectly disclosing or using any
information gained solely by reason of his official position for his own personal gain or benefit or
Page 21
for the private interest of others. Part (14) prohibits a public official from knowingly disclosing
information deemed confidential by law. Council member Gelbman obtained non-public information
concerning incentives offered to the gun range and to other businesses locating in the Town solely
as a result of his position as a Council member. The incentive packages being offered to other
businesses was information deemed confidential by law because the Town had not made incentive
agreements with any of the listed businesses when the information was allegedly disclosed. Tex.
Gov't Code Ann. § 552.131 (b). At the time he gained the non-public information he was in ongoing
negotiations with Mr. Vaught to obtain an interest in the gun range. Depending how the veracity of
each witness is judged, a finder of fact could reasonably conclude from the evidence that Council
member Gelbman knowingly disclosed this confidential non-public information to Mr. Vaught, and
the disclosure was intended to enable Mr. Vaught to negotiate a greater incentive package for the gun
range, a private interest and benefit. Based on the foregoing, therefore, and depending on how a
finder of fact may view the evidence, it is possible that Council member Gelbman has violated
Sections 2-415 (3) and (14) of the Ethics ordinance. The evidence is sufficient to justify11
recommending prosecution of Council member Gelbman for these possible violations.
3.6.2. Social Media Sites
Allegation: That Council member Gelbman used social media sites to deliberate with
Council members Brian Rountree and Kevin Bryant on the subject of the potential investigation of
the Council, allegedly in violation of TOMA.
The Ethics ordinance’s penalty provision provides that a violation committed11
knowingly constitutes a misdemeanor, punishable by a fine as prescribed by the Code ofOrdinance’s general penalty provision, section 1-13.
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Factual Basis: Subsequent to assuming his position as a member of the Town Council,
Council member Gelbman posted to social media sites information concerning the subject of the
potential investigation of the Council. Council members Rountree and Bryant also posted to social
media sites information concerning this same issue. Some of these Council members’ posts were to
the same social media site and some were to the same threads on those sites, but all three did not post
information concerning this issue to the same site and thread.
Application of TOMA: No violation.
Generally, TOMA requires Council members to deliberate about Town issues in a properly-
noticed public meeting. Section 551.143 of TOMA prohibits Council members from conspiring to
meet in numbers less than a quorum to avoid the requirements of notice and public meeting under
TOMA. Social media could be used to effect a conspiracy in violation of TOMA. To constitute a
violation, however, the public official must have the requisite culpable mental state. Op. Tex. Att'y
Gen. No. GA-0326 (2005). No evidence that Council member Gelbman “knowingly” attempted to
avoid the requirements of TOMA by using social media sites was found. Council member Gelbman,
therefore, did not violate TOMA.
3.6.3. Misuse of position with respect to Flick property
Allegation: That Council member Gelbman misused his position as a Council
member while present at property owned by Sharon Flick, allegedly in violation of the Ethics
ordinance.
Factual Basis: The factual basis for this allegation is disputed.
Gelbman version: Council member Gelbman was contact by Ms. Flick. She
explained to him that Town employees were scheduled to inspect her property for potential code
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violations later in the day, and she requested he be present. She further explained to him that she had
been fighting with her neighbors, which had prompted mutual complaints about each other to the
Town about various matters. Previously, she told Council member Gelbman, Town employees had
treated her “really bad.” She told him she was concerned that the Town employees would scare or
intimidate her, and she wanted him to be a witness. He agreed, saying he would like to attend an
inspection. The reason he wanted to attend an inspection, he explained, was because the Town
employees have a very bad reputation in dealing with residents. Since he was newly elected, Council
member Gelbman did not think the Town employees would know who he was, so it would give him
an opportunity to anonymously view the inspection and the conduct of Town employees. Council
member Gelbman held the opinion that if the Town employees knew he was a Council member it
would affect their conduct. Council member Gelbman arrived at Ms. Flick’s property before any
Town employees and inquired of Ms. Flick as to the issue requiring the inspection. Ms. Flick
identified a pile of dirt on the property as the issue. The first Town employee arrived, acted rudely,
and inquired as to Council member Gelbman’s identity, to which Council member Gelbman twice
replied he was only a neighbor, asked to be there by Ms. Flick. The employee in a rude manner began
the inspection. Two other Town employees arrived. Council member Gelbman asked the Town
employees to turn off the “strobe” lights on their trucks. Council member Gelbman also so inquired
as to the necessity of three Town employees at the inspection. One of the Town employees then
recognized Council member Gelbman as a member of the Town Council. Then Town employees
became a lot nicer. Shortly thereafter Council member Gelbman left. Council member Gelbman
holds the opinion that the inspection on Ms. Flick’s property was a “joke,” that it resembled a
S.W.A.T. operation, and that Ms. Flick was treated badly.
Page 24
Town employees’ version: The Town received a complaint with regard to an alleged
violation of the flood plain ordinance on a parcel of property owned by a Ms. Flick. Town employees
made attempts to contact Ms. Flick at the property to discuss the complaint and possible code
violations. They were not able to contact her on site. Subsequently the Town employees contacted
her by telephone and made an appointment to discuss the matter with her on site. At the scheduled
time for the appointment a Town employee with the capital improvement department arrived on site.
Ms. Flick was present with a gentleman, who was not known to the Town employee. The Town
employee introduced himself and inquired as to the identity of the gentleman. The gentleman
responded he was with the Town. When the Town employee inquired as to what department, the
gentleman presented a business card identifying himself as Council member Gelbman. Two
additional Town employees from Code Enforcement arrived on site. The first employee from the
capital improvement department was the one who primarily talked with Ms. Flick and Council
member Gelbman. During the course of the meeting, Council member Gelbman inquired whether
the Town normally had a meeting on site in situations like this and stated it seemed like a waste of
Town funds to have three employees and three Town vehicles on site for a small pile of dirt. The
Town employee explained the process and the problem. Council member Gelbman’s demeanor and
comments left the Town employee with the impression Council member Gelbman was of the opinion
the Town employees were bothering Ms. Flick for no reason. Council member Gelbman inquired
as to what the Town wanted Ms. Flick to do. The Town employee explained what the process would
be from that point forward. Council member Gelbman then left the site.
This event was also the subject of email communications between Council member Gelbman
and the Town Manager. In those communications, Council member Gelbman references his
Page 25
presentation of his Town Council business card to the Town employee.
The Investigator sought an interview with Ms. Flick about the matter, but she refused to be
interviewed.
Application of Ethics ordinance: No violation.
Section 2-415(10) of the Ethics ordinance prohibits “knowingly” performing any act “in order
to deliberately hinder the execution and implementation” of any ordinance. The Town employees
were at Ms. Flick’s property to enforce Town ordinances. In order to constitute a violation of 2-
415(10), Council member Gelbman would have to have intended that his presence and demeanor
at the inspection hinder the Town employees in their enforcement of Town ordinances. However,
Council member Gelbman’s stated intent was to anonymously observe a Town inspection. The
determination of Council member Gelbman’s actual intent, however, is complicated by the fact that
some of Council member Gelbman’s statements appear to be at odds with other evidence. For
example, his description of his conduct and statements while on the scene is inconsistent with the
Town employees’ description of what happened. In particular, Council member Gelbman claims
that he tried to remain incognito until recognized by one of the employees as a Council member,
while the employee states he immediately identified himself as being a Council member by
presenting his Town business card. The employee’s version is supported by Council member
Gelbman’s own email in which he referenced his presentation of a business card to the Town
employee. However, even if Council member Gelbman did immediately identify himself as a
member of the Town Council, that is not enough to conclude that his intention was to hinder the
employees. Even though the employees may have rightfully perceived displeasure in Council
member Gelbman’s demeanor, that also is not enough to conclude that his intention was to
Page 26
deliberately hinder their performance of their jobs. Although it is possible Council member Gelbman
intended to hinder Town employees the evidence is insufficient to establish his intent.
Council member Gelbman’s actions at the Flick property did not violate the Ethics ordinance.
4.0. Summary.12
The evidence with regard to the alleged violations of the Charter, TOMA, and the Ethics
ordinance by Mayor Hayden, Council member Webb, and Council member Bryant during the
relevant period is undisputed. None of them committed any violations. No violations were alleged
against Council member Dixon during the relevant period. The evidence with regard to Council
member Gelbman’s alleged violation of TOMA during the relevant period is undisputed. Council
member Gelbman did not violate TOMA. The evidence regarding Council member Gelbman’s
alleged violation of Sections 2-415(3) and (14) of the Ethics ordinance during the relevant period
is disputed. A conclusion concerning whether these violations occurred can not be drawn without
judging the veracity of the witnesses. The investigation procedure used is ill-suited for and not the
proper vehicle for resolving conflicting testimony. However, there was sufficient evidence of
violation of 2-415(3) and (14) developed in the investigation to recommend prosecution of Council
member Gelbman. Prosecution allows the conflicting evidence to be resolved in a traditional trial
proceeding where the finder of fact can observe the credibility and demeanor of the witnesses and
the accused can confront the accusers. Council member Gelbman’s alleged violation of Section 2-
415(10) is also disputed. However, even if the version of the events adverse to Council member
The opinions expressed in this report are limited by the defined scope of the12
investigation to violations of the Town Charter, TOMA and the Ethics ordinance. No opinionsare expressed or implied concerning the application or violation of any other statute, ordinance orregulation.
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